Gain Capital Pushes for CBM Review to Invalidate OANDA Patent Case

GAIN believes if the CBM review is instituted, there is a "90%+ likelihood of unpatentability."

Gain Capital, the largest retail FX broker in the United States, has written to the US court hearing the case of patent infringement allegations brought by OANDA as the legal standoff evolves. The Canadian-based brokerage has quite recently escalated its legal battle by filing a motion to dismiss claims made by Gain Capital for a stay order.

Today, Gain said there was plenty of evidence to refute two of plaintiff’s ‘significant mischaracterizations and factual errors’ that were filed by OANDA to justify the denial of its request to suspend the case proceedings.

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Firstly, the listed broker sates that OANDA argued that the PTAB’s statistics relating to its trial proceedings are merely ‘speculative’, and also claims there was a mere ’50/50 chance of some claims being held unpatentable’.

For its part, Gain Capital wants the court to consider a covered business method (CBM) review which provides a means to challenge the validity of an issued patent. The company further explains that OANDA cannot dispute that denial of institution of a CBM petition is a rare occurrence and that the PTAB only denied institution for 95 petitions since 2012.

Legal Battle Continues

As Gain has been sued with infringement, the firm can file a petition for CBM review provided that the incident can be directed to a covered business method patent. A CBM review is not automatically kicked off, still, it has been a powerful tool for accused infringers wanting to challenge the validity of a patent.

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“Rather than dispute the low number of CBM cases in which institution was denied, OANDA claims that it is ‘grossly misleading’ for GAIN to use the denominator of 602 total cases when expressing the number of institutions as a percentage of total petitions,” the company explains.

As such, GAIN believes if the petitions are instituted, there is a “90%+ likelihood of unpatentability” which could result in invalidating at least some or all of the challenged claims.

“But in an effort to downplay this compelling statistic, OANDA performs its own creative math to present the supposed likelihood of claims being found unpatentable upon the mere filing of a CBM petition,” the legal notice said.

In the latest motion filed by OANDA on October 14, the company’s attorneys argued that “GAIN tries to salvage its motion by submitting new evidence in reply.” OANDA has therefore asked the court to dismiss GAIN Capital’s attempt to file a stay order to the proceedings.

Let us recall that OANDA filed the lawsuit earlier this year alleging that GAIN has infringed upon two of patented technologies. As per the statement in its complaint, OANDA claims that: “Defendants have infringed one or more claims of the ʼ336 Patent by making, using, selling, offering for sale, or selling products and/or services that meet each of the limitations of one or more claims of the ʼ336 Patent.”

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